JUDGMENT 1. - Appellant Jodha was tried for the offences under Section 307 I.P.C. and Section 25 of the Arms Act by the Additional Sessions Judge, Jalore. By the judgment dated 16-12-79 he was convicted for the offence under Section 307 I. P. C. and sentenced to three years rigorous imprisonment and a fine of Rs. 2,000/-, in default to undergo six months rigorous imprisonment. For the other offence he was acquitted because of there being no sanction for prosecution under the Arms Act. 2. Briefly stated the facts of the case giving rise to this appeal are, that on 4-4-76 four bullock carts containing cumin seed (Jeera) were passing the road. Chhoga (P.W. 1), Varjanga (P. W. 8) and injured Hatta (P.W. 10) were going on foot behind the carts from their village `Vanu-Ki-Dhani, when they had reached at some distance from the village, appellant Jodha came from his Dhani with a gun and was seen standing at the road. When the injured and his two companions reached at a little distance from him, Jodha enquired of them as to who they were as going on the road. Chhoga (P.W. 1) told him that he, Varjanga and Hatta were there. Jodha told them that because Hatta had lodged information against him, implicating him in the theft of cumin seed ho will kill him with gun shot. Just on saying so he fired a shot which hit Hatta on his left thigh. Varjanga (P.W. 8) and Chhoga (P.W. 1) raised a cry. The persons in the bullock cart reached there. On hearing the hue and cry Narayan and Pema aiso reached there from the village. Leaving Hatta in injured condition there Chhoga (P.W. 1) went to police out post Narsana. Jhumaalal (P. W. 11) S. H. O. Police Station Bagora was present there. Chhoga (P.W. 1) informed him of the occurrence. First Information Report Ex. P. 1 was lodged by Chhoga. The case was registered against Jodha and the two constables were sent immediately to the site. The S.H.O reached the site at early morning. He conducted the necessary investigation at the site, took blood soaked earth and the control soil from the place where Hatta was lying, Hatta was taken to Bhinmal Hospital, where on 5-4-76 (P. W. 2) Dr. Suganchand examined his injuries and prepared the injury report Ex. P. 2. The S.H.O reached the site at early morning. He conducted the necessary investigation at the site, took blood soaked earth and the control soil from the place where Hatta was lying, Hatta was taken to Bhinmal Hospital, where on 5-4-76 (P. W. 2) Dr. Suganchand examined his injuries and prepared the injury report Ex. P. 2. The Doctor noted the following injuries on his person : 1. Gun Shot wound (wound of entry) 11/2" x 11/2" x bone deep and then upto skin of opposite side over left thigh lateral surface 10" below anterior superior illiac spine. Two pieces of bullet are removed. Laceration of muscles and blackening of muscle present. Left femur fractures underneath. 2. Three round black (tatooing) marks present. 1" above and 2" lateral to injury No. 1. There is no wound of exit. At three places pieces of bullets arc superficial:- 1. Over left thigh 10 above left pattela as on enteric-medial surface-One piece was removed. 2. Black spot 2 medial to injury No. 1-two pieces of bullet were removed. 3. Blackish spot 1 above the injury No. 2-one piece of bullet was removed. Note- direction from laterial medial wards and slightly downwards. There wore blood stains over left thigh, left leg, both hands-Angerkhi and dhoti. 3. The doctor advised X-ray for evidence of fracture. Hatta was then taken to Jalora General Hospital, where P, W. 3 Dr. B.L. Rai, Medical Jurist took the X-ray of the injury. Radio opaque shadows of the pellets were found. Fracture of the shaft of femur with the displacement was detected through X-ray. Injured was then taken to Jodhpur Hospital and his thigh was plastered. 4. After completion of necessary investigation, charge-sheet against the appellant was filed in the court of Judicial Magistrate, Bhinmal. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions, committed the appellants to stand their trial in the court of Additional Session Judge, Jalore. The learned Judge charge-sheeted the appellant for the above mentioned two offences and on his denying the indictments, proceeded with the trial. The prosecution examined 13 witnesses to substantiate its case. The appellant in his statement under Sections 313 Cr.P.C. totally denied the allegation levelled against him. No defence witness was examined. The learned Judge charge-sheeted the appellant for the above mentioned two offences and on his denying the indictments, proceeded with the trial. The prosecution examined 13 witnesses to substantiate its case. The appellant in his statement under Sections 313 Cr.P.C. totally denied the allegation levelled against him. No defence witness was examined. The learned trial Judge placed reliance on the injured and the two witnesses Chhoga (P.W. 1) and Varjanga (P. W. 8) and passed the judgment of conviction and sentenced the appellant for the offence under Section 307 I. P. C. as stated earlier. 5. Being aggrieved by his conviction and sentence, the appellant has preferred this appeal in this Court. 6. Mr. M.S. Singhvi, learned counsel for the appellant has assailed the finding of the learned trial Judge on a number of ground. It has been strenuously contended by him that in the dark night, it could not have been possible for the injured and the witnesses to identify the assailant from a distance of 2 to 3 paundas. Another attack on the impugned judgment is that the version of the witnesses that the range of firing was between 2 to 3 paundas stands falsified by the medical evidence of Dr. Suganchand who has noted blackening and tatooing at three places on the injured part of Hatta. Another argument raised is that the conduct of injured was unnatural in his remaining at the same place despite alarm being given by the assailant. According to the learned counsel any man in his proper senses would have run a way from there in order to save himself and, therefore, the learned counsel insisted, the case appears to be connected on account of the relations between the injured and the assailant being strained due to the case of alleged theft of cumin seed from the field of the injured. According to Mr. Singhvi, the evidence on record has not been properly appreciated by the learned trial Judge and, therefore, there cannot be any justification in the conviction. 7. Controverting these arguments, Mr. R.P. Dave, learned Public Prosecution submitted that so far as the range of firing is concerned, the distance given is approximate and it depends upon the make of the gun, that blackening spots maybe caused on account of the gun fire. Mr. 7. Controverting these arguments, Mr. R.P. Dave, learned Public Prosecution submitted that so far as the range of firing is concerned, the distance given is approximate and it depends upon the make of the gun, that blackening spots maybe caused on account of the gun fire. Mr. Dave next contended that the witnesses have stated that they could identify the assailant in the moonlight and, therefore, it cannot be said to be a case of implication only on the ground of suspicion. 8. Prosecution has led direct as well as circumstantial evidence in the case. Direct evidence is of injured Hatta, and Varjanga (P.W. 8) and Chhoga (P. W. 1) who were accompanying him at the time of the occurrence. The circumstantial evidence is the recovery of the gun in pursuance of the information furnished by the appellant. The perusal of the statement of the three witnesses clearly shows that all are consistent in narration about the actual occurrence. They were cross-examined at length and nothing could be elicited so as to discredit them. It is pertinent to note that Chhoga (P.W. 1) has immediately left the place for informing the police information Ex. P.1 was recorded at his instance. The site was also inspected at his instance. The S.H.O. has admitted to have noted the places pointed out by the witness. At this juncture, it may be observed that the prosecution case about the relations between Jodha and Chhoga being strained on account of implication of the former in a theft case by Bhaga, father of injured Hatta stands established from the statement of Hatta and the same has not been disputed by the appellant. Argument of Mr. Singhvi that the report was made by Bhaga and not by Hatta and, therefore, Jodha would not have aimed to shot at Hatta, has no force because Hatta happens to be the son of Bhaga and, therefore naturally also an enemy of Jodha. 9. The pertinent point raised in the case which calls for determination is regarding the range of firing in the case. This point has been emphasised much by the learned counsel for the appellant for two reasons. Firstly, if the distance was much there could not have been any question of identification and secondly, if the range of firing was about two paundas, there could not have been black spots at the site of the injuries. This point has been emphasised much by the learned counsel for the appellant for two reasons. Firstly, if the distance was much there could not have been any question of identification and secondly, if the range of firing was about two paundas, there could not have been black spots at the site of the injuries. So far as the first point is concerned, no discussion is required because the three witnesses have categorically stated that it was in the moonlight that they could identify the assailant Jodha. Regarding the second line of argument, relevant it is to note that the witnesses have given the distance 2 to 3 paundas between all of them and the assailant. It has been further clarified that the gap between the three witnesses was about one paunda each P.W. Chhoga has no doubt stated that when the gun was fired by Jodha the barrel was at a distance of three paundas from Hatta. Varjanga (P.W. 8) has stated about the distance being about four paundas between Jodha and Hatta but has also state that when the gun was fired the distance between Hatta and the barrel was 2 to 3 hands. This narrows down the distance to only 5 feets. The injured Hattah has stated that Jodha had fired the shot from a distance of two paundas and at that time the barrel of the gun was at a distance of 2 feet from him. If that was then the medical evidence is quite consistent with the prosecution evidence, the opinion expressed by Modi in his treatise on Medical Jurisprudence and Texocology Sixteenth Edition, page 234, that is the fire arm is used from the distance of more than four feet, no blackening or scorching will he found, does not therefore help the learned counsel for the appellant. P.W. 2 Dr. Suganchand stated that range of firing should not have been less than six feet. Mr. Singhvi has also drawn my attention to the statement of S.H.O. Jhumarlal (P.W. 11) that he had measured the distance between the place of firing and the place where the injured was lying at the instance of Chhoga (P.W. 1). The learned counsel contended that this distance is 171/2 feet. Mr. Singhvi has also drawn my attention to the statement of S.H.O. Jhumarlal (P.W. 11) that he had measured the distance between the place of firing and the place where the injured was lying at the instance of Chhoga (P.W. 1). The learned counsel contended that this distance is 171/2 feet. In this connection, it would be profitable to refer to the statement of Varjanga (P.W. 8) who has stated that there was distance of four paun between the place where Hatta was hit by the gun shot and the place where subsequently fell down. In this view of the matter, it cannot be said that the medical evidence makes the presence of the eye-witnesses Chhoga and Varjanga at the time of the incident doubtful and the injured may be saddled with the concoction of a false case against the appellant. 10. So far as the point about the unnatural conduct of the injured is concerned, it may be observed that as to what transpires in the mind of a particular person at a particular moment and what is the reaction on hearing an alarm of the type is the subjective condition of mind and may differ from person to person. The argument of the learned Public Prosecutor that as it all happened at the spur of the moment without any gap of time, the injured might have remained stunned has also force. 11. In view of the above discussion, I find nothing erroneous in the finding of the learned trial Judge that it was on account of the gun shot fired by Jodha that Hatta was injured at the time and place alleged by the prosecution. 12. Mr. Singhvi next contended that even in case the prosecution witnesses are believed, the facts and circumstances do not show that there was any intention on the part of the appellant to commit the murder of Jodha so as to bring the case within the ambit of Section 307 I.P.C. The learned counsel based his arguments on the fact that no vital organ of the body was hit. This is correct that the injury was on the thigh and not at any vital organ of the body. There may be cases in which there may not be any injury at all sustained by the target, still the circumstances may denote the intention of the miscreant to commit the murder. This is correct that the injury was on the thigh and not at any vital organ of the body. There may be cases in which there may not be any injury at all sustained by the target, still the circumstances may denote the intention of the miscreant to commit the murder. Presence of injury may help the Court to infer the intention of the assailant. Gun fire injuries need not always be sufficient to bring the case of the assailant within the ambit of an attempt to commit murder. There may be cases where fire arm is used but only superficial injuries are caused. There may also be cases where in order to scare of the victim or his companion, gun may be fired in the air and pellets may hit the victim. In such circumstances, it can legitimately be argued that the case does not fall within the ambit of Section 307 I.P.C. But in the case like the present one where the gun was fired from a close range and there is grievious injury on the thigh, it cannot be said that the Intention of the assailant was any thing else than to kill the victim. Reference may also be made to the serious nature of injury of Hatta. As stated by him he had remained in the hospital for more than a month and then had to visit the hospital again and again for check up of plaster to Jodhpur Hospital. His statement was recorded on 12-8-76 at the trial and even till that date there was plaster, which as stated by him he was going to get checked up at the hospital. He has stated that he was not able to do his routine functions in a normal way till that day and was discharging stool and urine with the help of others on the bed itself. All these circumstances taken together point out the seriousness of the act of the assailant and I find myself unable to agree with the learned counsel for the appellant that it is not a case in which conviction under Section 307 I. P. C. may be sustained. 13. Mr. All these circumstances taken together point out the seriousness of the act of the assailant and I find myself unable to agree with the learned counsel for the appellant that it is not a case in which conviction under Section 307 I. P. C. may be sustained. 13. Mr. Singhvi inter-alia argued that if his arguments about the innocence of the appellant do not appeal the Court, still in view of the fact that the appellant had remained in custody for a period of 81/2 months, a lenient view may be taken and he may not be sent behind the bars again. This prayer also is not worth consideration in view of the facts and circumstances of the case and the serious injury sustained by the victim. In this view of the matter, the sentence awarded to the appellant cannot be said to be inadequate so as to call for any interference. 14. Consequently, the appeal having no merits is dismissed. It is however ordered that out of the amount of fine of Rs. 2,000/-, Rs 1,000/- may be awarded to injured Hatta by way of compensation. The appellant is on bail. The Chief Judicial Magistrate, Jalore is directed to issue warrant of arrest against the appellant and send him to jail to serve out the sentence awarded to him for the offence under Section 307 I. P. C.Appeal Dismissed. *******